Bedrosian Vista v. Mossy European Imports CA4/1 (2014) · DecisionDepot
Bedrosian Vista v. Mossy European Imports CA4/1
California Court of Appeal May 5, 2014 No. D063845Unpublished
Filed 5/5/14 Bedrosian Vista v. Mossy European Imports CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
BEDROSIAN VISTA, LLC, D063845
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2013-00038941- CU-BC-NC) MOSSY EUROPEAN IMPORTS, INC. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of San Diego County, Earl H. Maas
III, Judge. Affirmed.
Blackmar, Principe & Schmelter and Timothy D. Principe for Defendants and
Appellants.
Palmieri, Tyler, Weiner, Wilhelm & Waldron, Michael H. Leifer and Erin B.
Naderi for Plaintiff and Respondent.
This dispute involves interpretation of a declaration of covenants, conditions and
restrictions (CC&R's) providing parking easements over three parcels of land located in
the City of Vista (City). Parcel 1 is owned by plaintiff Bedrosian Vista, LLC
(Bedrosian), parcel 2 by the defendant City, parcel 3 by defendant Mossy European
Imports, Inc. (Mossy). The City leases parcel 2 to Mossy. The CC&R's provide that,
with the exception of 20 undesignated parking spaces for the customers and invitees of
parcel 2, the owners of parcels 2 and 3 had no right to use parcel 1's parking area.
p. 241; United Railroads of San Francisco v. Superior Court, supra, 172 Cal. at p. 84;
Uptown Enterprises v. Strand (1961) 195 Cal.App.2d 45, 52.)
The issuance of an injunction is also proper to protect a party from wrongful
interference with a lawful business, as occurred in this case. (6 Witkin, Cal Procedure,
supra, ¶ 309, p. 247.)
14
Finally, contrary to the City and Mossy's contention, Bedrosian's tenants'
operations were being impacted by their violations of the CC&R's and occupation of
parcel 1. Tenants complained that the actions of City and Mossy were impacting their
businesses.
In their reply brief Mossy reference the following quote from this court's decision
in Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 350:
"'Normal future uses [of an easement] are within the reasonable contemplation of the
parties and therefore permissible, but uncontemplated abnormal uses, which greatly
increase the burden, are not.'" However, Mossy's actions, which are directly contrary to
the provisions of the CC&R's, cannot be considered "normal future uses" as contemplated
by the parties. Mossy also neglects to mention another statement in that same paragraph
of the opinion that "[t]he owner of an easement cannot materially increase the burden of
the easement on the servient estate or impose a new burden." (Ibid.) As we have
discussed, Mossy's storage of inventory vehicles did increase the burden on parcel 1.
D. The Bond Amount Was Proper
The City and Mossy assert that the court abused its discretion in setting the bond
amount at $25,000. We reject this contention.
In asserting the bond amount was improper, the City and Mossy rely on ABBA
Rubber Co. v. Seaquist, supra, 235 Cal.App.3d 1. However, that case does support this
contention. In ABBA Rubber, the trial court set a bond of $1,000 where the injunction,
arising out of a trade secret claim, stopped the defendant from operating a segment of its
business. However, in reaching its decision that the bond ordered was insufficient, the
15
appellate court did not hold that such a bond would never be appropriate: "In the
abstract, $1,000 is not an insignificant sum. It may be an appropriate undertaking in
cases of harassment or trespass." (Id. at p. 15, fn. 7, italics added.)
Here, the bond amount was proper in light of the scope of the preliminary
injunction granted and the lack of evidence supporting a larger amount. The preliminary
injunction sought by Bedrosian was broader than the preliminary injunction ordered.
Bedrosian's motion requested that Mossy also be prohibited from using parcel 3 for
inventory storage. As the court noted, Bedrosian established a likelihood of success on
the merits demonstrating that the CC&R's did not permit use of parcel 3 by Mossy
because parcel 3 has not been entitled for any use. Mossy is not prohibited from running
the approved aspects of its business and is not being enjoined from using an additional
acre of land for which it has no approval to use for that business. As to the City, it has
not submitted any evidence that it would suffer any damages at all. As the court stated,
"The Court finds this amount to be appropriate under the circumstances, and the Court's
denial of the request to include Parcel 3 parking in this injunction."
Thus, the court did not abuse its discretion in finding the $25,000 bond was
appropriate under the circumstances of this case.
The City and Mossy assert that court erred in changing the bond after the fact to
reference the City. This contention is also unavailing.
In support of that claim the City and Mossy cite Casitas Inv. Co. v. Charles L.
Harney, Inc. (1962) 203 Cal.App.2d 811. They claim this failure voids the injunction
and the trial court's later order trying to fix it "nunc pro tunc" does not cure it. Casitas
16
does not stand for that proposition. In Casitas, the trial court's preliminary injunction
order did not include any bond. (Id. at p. 815.) About a month after the preliminary
injunction order, the trial court tried to fix its error by entering a nunc pro tunc order
providing that the prior bond filed pursuant to its TRO against different parties at a time
no injunction existed would continue as security for the preliminary injunction order.
(Ibid.) In concluding that the injunction must be set aside, the Court of Appeal noted that
at the time the bond was posted, no injunction proceeding was pending against the third
defendant, so the bond could not run in its favor. (Id. at pp. 815-818.)
Here, however, the trial court's preliminary injunction did order a bond in favor of
both defendants. The City and Mossy thereafter objected to the form, provided by the
bonding company, of the caption naming only Mossy and the use of the singular
"defendant." The use of "defendant" and the caption was not an error of the trial court
but an error by the bonding company. Moreover, when the City and Mossy objected to
the form of the bond, they did not seek to have the injunction dissolved. Rather, the City
and Mossy's objection requested that the bond include reference to the City. The court
thereafter ordered the bond be amended to include reference to the City, and it was so
amended.
Further, at the hearing on the preliminary injunction, Mossy and the City did not
submit credible evidence to support its claim for an increased bond amount. In
opposition to the preliminary injunction, Mossy and the City first sought a $500,000
bond. In their motion objecting to the amount of the preliminary injunction bond, they
17
then reduced their request to $275,000. In their reply brief to that same motion,
Defendants then reduced their request to $150,000.
The only evidence Mossy submitted in support of its request for an increase in the
bond amount was a declaration of its general manager, Brian Kennedy. Kennedy's
declaration asserted, without any documentary support, that after the TRO hearing,
Mossy "relocated its remaining inventory of approximately 100 vehicles to an
emergency, offsite lease location" and that "Mossy was forced to procure an emergency,
short term lease, for which it is paying $5,350 per month in base rent . . . ." No
information was provided concerning the location of this "emergency" site. No lease was
submitted and no cancelled checks. Thus, the court did not err in rejecting Mossy and the
City's claim the bond amount should be increased.
In sum, the court acted well within its discretion in ordering the $25,000 bond
given the facts presented and the scope of the injunction granted.
DISPOSITION
The order granting preliminary injunction is affirmed. Bedrosian shall recover its
costs on appeal.
NARES, J. WE CONCUR:
BENKE, Acting P. J.
IRION, J.
18
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the issuance of a preliminary injunction prohibiting the defendants from storing vehicle inventory on the plaintiff's property, finding that the governing CC&Rs did not permit such use and that the defendants failed to demonstrate an abuse of discretion regarding the injunction's scope or the bond amount.
Issues
Whether the trial court abused its discretion in issuing a preliminary injunction against the City and its tenant, Mossy, to prevent the storage of vehicle inventory on the plaintiff's property.
Whether the trial court abused its discretion in setting the preliminary injunction bond at $25,000.
Whether the preliminary injunction was improperly characterized as a mandatory rather than a prohibitory injunction.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The court issued an injunction in favor of Bedrosian, concluding that under the parking easements governing the parking rights of the parties, Mossy had no right to park on Bedrosian's parcel 1”
“Injunction orders are considered prohibitory as a matter of law even if they have incidental mandatory features.”